Accession of EU to the Convention Rights - Research Paper Example

Accession of EU to the Convention Rights I Research Question To what extent will the Charter of Fundamental Rights and the accession of the EU to the European Convention on Human Rights provide a coherent system of human rights protection in Europe and how? II Introduction Prior to December 2009, much has been said about the situation of the legal system of the human rights protection in Europe, not because it was wanting but because there may be one too many factions implementing and interpreting it. Although the much vaunted set of human rights protection collectively known as the European Human Rights Convention (Convention hereafter) originated in this part of the world and is presently governing human rights protection, the existence of two contending powerful supranational organisations that have both the opportunities and the means to impose and interpret it is muddling the European landscape presenting itself as a source of potential conflict and confusion. This lack of coherence, or perceived lack of coherence, in the implementation and interpretation of the European human rights system of protection paved the way for a concerted effort to push for the accession of one of the contending supranational forces into the human rights system of the other and the legal recognition of the former’s own charter of basic rights on its own founding treaty. In the European landscape, two supranational organisations dominate, each of which hold vast powers in their respective spheres. The Council of Europe, established in 1949 by the Treaty of London in Strasbourg, is an organisation of European countries that shared some common interests like similar, more or less, economic system, religious underpinning, except for the state of Turkey, and basic democratic institutions. Its founding fathers include Winston Churchill, Robert Schuman, Paul-Henri Spaak, Konrad Adenauer, Alcide de Gasperi and Ernest Bevin and ten states in Europe, including the United Kingdom. The founding of the organisation was to foster unity and safeguard peace in the region. Among its notable creations is the European Court of Human Rights (ECtHR hereafter) based in Strasbourg, France, which interprets the Convention and incorporate such interpretations in its decisions. The Convention is a body of basic human rights law that sets out the Council’s human rights provisions (Davis 16-18), intended to govern the conduct of Member States, their institutions and public authorities vis-à-vis their citizens. It was entered into and signed in 1950 by the Council’s Member States as a means of protection of the civil and political rights of citizens of Member States (Council of Europe 2009). Today, the Council has 47 Member States (Council of Europe 2010). On the other hand, the European Union had its early beginning in the formation of the European Coal and Steel Community (ECSC) by six countries in 1951 in Paris, namely France, Germany, Italy, the Netherlands, Belgium and Luxembourg in accordance with the Schumann Plan, a blueprint for the creation of an integrated and united Europe underpinned by the quest for peace and prevent the recurrence of war in the region. It shared some of its founding fathers with that of the Council like Churchill, de Gasperi, Adenauer, Spaak and Schuman along with Walter Hallestein, Jean Monnet, and Altiero Spinelli. Eventually, the organisation, then called the European Communities, grew and evolved into an assembly of three organisations starting 1957 and the Treaty of Rome: the original ECSC; the European Atomic Energy Community (EURATOM), and; the European Economic Community (EEC). The Maastricht Treaty in 1993 formally created the European Union and established its Three Pillars consisting of the European Community or EC (a merged European Communities), the Police and Judicial Cooperation in Criminal Matters (or the PJCC) and the Common Foreign and Security Policy (CFSP) (Kaczorowska 2-25). Finally, the Lisbon Treaty amended the document creating the Union in 2007 and made effective in December 2009. Today, the EU has 27 Member States, all of which are also members of the Council of Europe (EUROPA: Gateway to the European Union 2010). Despite the fact that these two supranational organisations are distinct and independent from each other, there are evident striking similarities between them, and these similarities are not only confined to common founding fathers, membership, location, aims and objectives but also close proximity in the seat of power, symbol and even the names of their respective institutions. Despite the common membership of the EU and the Council, albeit the latter has more members than the former, the two supranational organisations have different legal systems, among others. The EU, for example, has established its court, the European Court of Justice, in Luxembourg whilst the Council, as earlier stated, the ECtHR in Strasbourg. The situation is tricky especially for EU Member States because whilst the EU is an autonomous organisation, distinct and separate from the Council, its Members States are bound, being members of the Council, to obey and follow the ECHR even while applying or executing EU law (Council of Europe 2009). Procedurally, there should be and there are marked distinctions between the ECJ and the ECtHR but substantially the differences may not be as distinct and as a matter of fact, are said to overlap at times. Ideally, if a case is concerned with an EU law then the court of resort is the ECJ but if it involves human rights law, then the relevant court is the ECtHR. ECJ sources of relevant laws are related treaties, regulations and directives of the EU whilst ECtHR’s is chiefly the ECHR 1950. ECJ’s geographical jurisdiction is its 27 Member States whilst ECtHR’s in its 47 Member States, which is most of Europe. The ECJ’s main function is to assist Member States’ in determining the interpretation of EU laws and determines issues on whether Member States and EU institutions have complied with EU law. Thus, if a court of a Member State determined that the issue before it needs to be clarified by the ECJ, the former will make a preliminary referral of the issue to it. On the other hand, the ECtHR’s main role is to serve as the final court of appeal on human rights issues involving citizens of Member States, after such citizens have exhausted judicial remedies in his home state (Rush & Ottley 21-22). It is impossible, however, to think that EU law can never involve human rights issues and so it is likewise impossible to make a distinction of their respective jurisdictions on the basis of the laws that they apply, although it was never the intention of their founders that the two courts’ functions would overlap. First, they share important characteristics: both are supreme over national courts and their decisions are not subject to appeal; both can decide on cases brought by natural or legal entities, and; they are not controlled by any one Member State because of their supranational status. Second, there were instances in the past when litigants, in cases pending before the aforesaid courts, brought arguments before them that touched on the subject of the other, like a human rights issue on the basis of the Convention before the ECJ or a supposed failure of the ECJ to respect Convention rights before the ECtHR (Guild 131-132). These constant overlapping and the pressure placed on one court to deal with issues concerning the other has raised some concerns in Europe fearing eventual conflict and confusion. Many are more inclined by the day to believe EU accession to the Convention as the answer to this looming conflict. Finally, on 13 December 2007, the EU Constitutional Treaty, which never entered into force because there was a general failure of its ratification by Member States, was officially abandoned and in its stead, the Treaty of Lisbon was adopted. Some of the significant provisions of the Treaty are the abandonment of the three-pillar system (referring to the European Community, the Police and Judicial Cooperation in Criminal Matters and the Common Foreign and Security Policy), the full merger of the EC and the EU and a provision, i.e. Article 6, establishing the legal basis for the EU accession to the European Convention on Human Rights and the gaining of legal status of the EU’s Charter of Fundamental Rights (Moens & Trone 9; Council of Europe 2009). Prior to the passing of the Lisbon Treaty, the Union Constitution had already provided a basis for EU accession to the Convention. In Article 7.2 thereof, the Union mandated such accession and a related Protocol outlined the mechanism by which negotiations for such accession should be conducted with the Council of Europe at the same stressing the preservation of the independence and unique characteristics of EU law (Benoit-Rohmer and Klebes 2005 133). EU accession to the Convention had been broached and promoted by no less than the Council, particularly its Parliament and Secretary General since 1979. In 2005, it has gained momentum when more than 46 heads of states adopted it in Warsaw as a means to provide a venue by which the two supranational bodies will find a common bond and strengthen their relations (Bemelmans-Videc 2008 90-91). The Lisbon Treaty has finally realised accession of the EU to the Convention. The Charter of Fundamental Rights, on the other hand, had long been proclaimed in the Treaty of Nice in 2000 but its legal implication was uncertain because not only was it not incorporated into the EU treaties but it was also considered a contentious document by several Member States. The coming into force of the Lisbon Treaty has changed that, as the latter has specifically referenced in Article 6(1) thereof and declare it to be of the same legal value as the Treaties creating the Union (Chalmers eta l 65-69). The Charter contains the social, political and economic rights of the citizens of EU’s Member States. Whether or not the accession of the EU into the Convention and the legal recognition now attached to the Charter of Fundamental Rights will finally provide coherence in the human rights legal system in Europe is a subject that this paper is contemplating and hopes to answer. III Literature Review A report to the Parliamentary Assembly in 2008 by a rapporteur from the Netherlands strongly suggested the need for an EU accession to the Convention to preclude certain perils from occurring. Such perils are: divergences in the standard of human rights; absence of external control for EU and its institutions where human rights issues are concerned; no harmonisation between ECJ and ECtHR decisions and therefore, no coherence of European human rights protection; no direct resort by EU citizens to the ECtHR; difficulty in implementing ECtHR decisions in cases where EU laws are also involved (2008 89). The coming into force of the Treaty of Lisbon 1 December 2009 made EU accession finally a reality. EU accession to the Convention is three-pronged: as a complement to the Charter of Fundamental Rights; a means of direct attribution of EU acts to itself rather than on Member States, and; an opportunity for the EU to defend itself as a body before Strasbourg (Reding 2010 2-4). Politically, EU accession will convey the forging of a pan-European shared values particularly shared human rights values, not only to Europe but to the whole world. Moreover, accession will correct the “discrepancies in human rights standards” between institutions in Europe and the Council and EU and Member States and foster consistency, an element acknowledged to be of utmost importance even by both supranational organisations in 2007 (Bemelmans-Videc 2008 91). Some states, like France and UK, had previously entertained reservations over accession, mainly centering on the issue of Community law autonomy and possible subordination of the ECJ to the ECtHR, which violates ECJ’s role as the sole arbiter of questions regarding Community law. In addition, it would necessarily subject EU to the jurisdiction of non-EU judges. However, a minimum standard of fundamental rights embodied in the Convention is necessary to prevent a situation where two laws would compete with each other to the detriment of Europe and its citizens (Benoit-Rohmer and Klebes 2005 133). Andrew Duff of ALDE views accession as an opportunity for the ECJ to expand its powers. He believes that it will “provide a comprehensive superior rights regime across EU, and give the European Court of Justice enjoying the external supervision of the European Court of Human Rights at Strasbourg new powers to develop the world’s leading jurisprudence on fundamental rights” and that such development will give EU citizens easier and uniform access to justice (ALDE Welcomes European Union Accession to Human Rights Convention 2010). Moreover, accession will not strip the EU of legitimacy but on the contrary, fortifies it. The more significant role of accession is the de-politicisation of interactions involving human rights, not only within the EU but all throughout Europe because it will subject all European citizens to the same fundamental court system and rights that are legally binding (Jagland: EU Accession to Human Rights Convention “Vital” 2010). Jacobs, an Advocate General of the ECJ, pointed out that an identical system of laws underpinning both the ECJ and the ECtHR may be counterproductive because it may bring about confusion, citing four reasons: the basis for accession would necessarily narrow down the scope of the Convention rights; the incorporation of non-justiciable rights not included in the Convention and Convention rights in the same instrument, and; the Charter is not an all purpose human rights instrument for the EU but only addresses the workings of EU institutions and Member States when implementing EU laws (293-294). In addition, Jacobs viewed accession as unnecessary because of the already growing affinity and deference between the two courts as evidenced by their recent decisions. In 2002, for example, the ECJ made a momentous decision in the case of Roquette Frères SA v France: 94/00 [2002] by overturning its earlier decision in Hoechst AG v Commission of the European Communities: 46/47 and 227/88 [1989] in deference to the ECHR’s decision in Chappell v The United Kingdom [1989] ECHR [1990] EHRR 1. In Hoechst, the applicant’s business premises was ordered searched by the EC on the ground of suspicions of violation of Regulation 17 relative to the fixing of prices and delivery quotas of PVC and polyethylene products. The ECJ rejected the applicant’s argument citing privacy under Article 8, holding that it extends only to private life and home and does not apply to intervention of public authorities on business premises. Meanwhile, the ECtHR decided in Chappell [1990] that the right of protection under Art. 8 should extend as well to business premises. Subsequently, in Roquette [2002], whose facts closely resembled that of Hoechst, the ECJ said: “For the purpose of determining the scope of the principle [of protection against arbitrary or disproportionate intervention of public authorities] in relation to the protection of business interest, regard must be had to case-law of the European Court of Human Rights subsequent to the judgment in Hoechst. According to that case-law, first, the protection of the home provided for in Article 8 of the ECHR may in certain circumstances be extended to cover such premises and, second, the right of interference established in Art 8(2) of the ECtHR ‘might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case.’” It can be noted that in Roquette, the ECJ has effectively amended Hoechst in deference to Chappell’s ruling. The ECtHR returned the favour in Bosphorus Airlines v Ireland 45036/98 [2005] ECtHR 440, holding that an equivalent protection of fundamental rights, even if not identical to the Convention, suffices and therefore, there is no need for it to re-examine the ECJ decision even if the case involved a question of possible violation of Convention rights. In Bosphorus, the Irish government impounded a leased aircraft registered in Yugoslavia brought to Ireland for maintenance work after the EC instituted a search on the applicant’s premises, which served both as his home and business place, on the basis of an EC Regulation sanctioning Yugoslavia. The Irish SC applied for a preliminary ruling to the ECJ, which ruled that the impounding was justified by the fulfillment of the Regulation to a UN mandate dissuading the FRY from further violating the security of Bosnia-Herzegovina. As earlier stated, the ECHR refused to review the ECJ’s decision (Jacobs 2005 291-293). However, contrary to Jacob’s contention, Bosphorus only emphasised the lack of coherence of human rights protection in Europe and further bolstered the need for an accession. Bosphorus created a risk of double standards because by refusing to subject the ECJ decision to strict scrutiny, the ECtHR created a scenario wherein EU and its Member States are allowed a flexible interpretation of Convention rights, a privilege not available to Member States of the Council (Kuhnert 2006 177, 186-188). This gap is often called the “black hole” in Europe because of the inability of the Convention to be fully implemented in that area since the supranational body with which Member States reassigned their collective significant powers is not subject to it (Pourgourides 2007 45). An Assembly referred to such oddity as “by far the most serious lacuna surrounds the institutions of the European Union itself, the only public authorities operating in Council of Europe member states that are outside the jurisdiction of the European Court of Human Rights” (Bemelmans-Videc 2008 92). In addition, the unusual situation imposed upon EU Member States of being obliged to follow the Convention even whilst applying and implementing EU laws can only be corrected through accession (Council of Europe 2009). As to the Charter of Fundamental Rights, its being referenced by the Lisbon Treaty is inadequate to finally quash the longtime contentiousness of the document as no less than an incorporation of the Charter to the Treaty should have been made. Albeit its legal recognition is momentous in itself, the quality of the recognition is wanting because of its vagueness. Article 6 of the Lisbon Treaty which proclaimed the Charter as having the same legal values as the Treaties can be made subject to different interpretations. One such interpretation would be that the provisions of the Charter are to be viewed as independent engendering its own rules of interpretations, case law, and meanings but it could be also interpreted as dependent on explanations of the sources of the provisions themselves as stated in the last paragraph of the Article. Such susceptibility to different interpretations is a weakness that can impede its effectiveness and must be remedied considering that the UK and Poland had expressed their reservations over the Charter as so stated in the Protocol on the Application of the Charter of Fundamental Rights (2008 65-69). Helle Porsdam offered the observation that even Europeans are divided over the legal recognition of the Charter. Albeit some welcomed the move, seeing it as a proof of EU’s commitment to basic rights and a step towards further amplification of the rights already secured by the ECJ, there are some who see the Charter’s legal recognition as a possible source of further tension between it and the Convention rights as well as between the ECJ and the ECtHR. Since the Charter also enshrines fundamental human rights, the implication of its new legally binding nature is that the ECJ will now step into an area where the ECtHR reigns supreme although accession might ease up the possibility of tension (2009 101-102). IV Methodology (a) Research Design The research design being contemplated for this paper is primarily historical research and a mixture of causal and descriptive approaches. This will be done through secondary research using materials like books, internet sources, and other literatures for the purpose of collecting data on the subject. The purpose of using this approach is to look into past events to shed light to the problem being contemplated in the present. (b) Data Gathering Procedure The data gathering procedure is basically qualitative, where data mining is largely inductive in nature in that as many data relative to the subject are gathered and then subjected to analysis. V Conclusion The EU accession and the recognition of the Charter of Fundamental Rights enhance the commitment of the EU to the fundamental rights of its citizens and present it as a more credible supranational entity to Europe and the world committed to the advocacy of respecting and fostering basic human rights, according to many legal authorities and authors. What is more significant, however, is that the Charter and especially the accession of EU to the Convention presents an opportunity for the implementation of a single standard of human rights law in all of Europe and an equally important opportunity to institute a coherent system of human rights protection in the region. Those who had avidly pursued for accession argued that it would serve to fill the legal gap, the “black-hole” of Europe, as Pourgourides referred to it, that exists in the very centre of Europe because of EU and its institutions’ previous immunity from the Convention. Indeed, it was quite bizarre that EU’s Member States are all members of the Council of Europe and are therefore, bound by the provisions of the Convention even while they are performing EU law but EU itself was not subject to them. What was more unsettling, according to these sources, was that Member States are giving up more and more of their inherent rights and powers, necessarily including some of their accountability, to a body which was itself not accountable to the entity they were accountable to. The Bosphorus case, recently decided by the ECtHR seemed to emphasise this much-talked about lack of coherence in the implementation of a basic human rights protection in Europe. Whilst the case evidently tried to foster deference to an equal judicial body, albeit both ECJ and ECtHR are supposed to be autonomous and independent, it inadvertently illustrated that a case of double standard where implementation of human rights law in Europe is concerned is afoot. Since ECtHR held back and allowed the ECJ decision involving possible violation of Convention rights less scrutiny, if at all, the overall impression is that EU and its Member States are enjoying certain leverage not available to non-EU states in Europe. Notwithstanding the newly proclaimed legal character of the Charter and the EU’s accession seemingly presenting significant progress and advancement in the legal system of the entire Europe, one that would ensure equality for all, worthy objections and reservations against them still exist. Criticisms against the legal recognition of the Charter by the Lisbon Treaty range from the inadequacy of the recognition to its pointlessness, redundancy and possibility of being a source of tension. On the other hand, EU accession was likewise seen as unnecessary, possible tension-generating and engendering confusion. There were also those who see accession as surrender by the EU of its autonomy and independence, a point-of-view advanced by the likes of France and even the UK. In addition, Poland and the UK, and possibly Czechoslovakia, had submitted their reservations over the imposition of the Charter in their respective jurisdictions with respect to prohibiting compelling their national courts to determine if their laws are inconsistent with that of the Charter as well as limiting Title IV thereof from creating justiciable rights. These in themselves constitute a thorn to the full recognition and credibility of the Charter. Nevertheless, it is easy to see from the various sources herein cited, weighing the pros and the cons together, that the legal recognition of the Charter and the accession of the EU to the Convention is a big step towards a coherent system of human rights protection in the whole of Europe despite the credibility of the criticisms against them. The fact that a fundamental set of human rights law exists that governs the whole of Europe and exempts no one is quite a good foundation that should offset and defeat any and all criticisms against it. Legal coherence or the ability of the law to be applicable to all subject entities is, after all, the foundation of justice and fairness. VI Bibliography (2010). ALDE Welcomes European Union Accession to Human Rights Convention. ALDE. http://www.alde.eu/en/details/?no_cache=1&tx_ttnews[tt_news]=23467. (2010). EUROPA: Gateway to the European Union. http://europa.eu/index_en.htm. (2010). Jagland: EU Accession to Human Rights Convention “Vital,” Issue: 868, NewEurope. http://www.neurope.eu/articles/99289.php. (2010). Ramón Jáuregui on EU Accession to European Convention on Human Rights, Human Rights, European Parliament. http://www.europarl.europa.eu/news/public/story_page/015-74278-127-05-19-902-20100507STO74260-2010-07-05-2010/default_en.htm. Bemelmans-Videc, M. (2008). 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